Greg Abbott pushes to block disabled Texans’ lawsuits against state

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Mona Reeder/Staff Photographer

Greg Abbott has used a wheelchair since a tree fell on him and crushed his spine almost 30 years ago. Since passage of the federal Americans with Disabilities Act, most buildings have ramps and doors wide enough for his wheelchair.

AUSTIN — Attorney General Greg Abbott, who has said he supports the Americans with Disabilities Act, has tenaciously battled to block the courthouse door to disabled Texans who sue the state.

In a series of legal cases in his three terms, Abbott’s office has fought a blind pharmacy professor in Amarillo who wanted reflective tape on the stairs to her office; two deaf defendants in Laredo who asked for a qualified sign language interpreter in their courtroom; and a woman with an amputated leg. In that case, the state argued she was not disabled because she had a prosthetic limb.

Abbott, who has used a wheelchair since a tree fell on him while he was jogging and crushed his spine almost 30 years ago, applauds the 1990 federal law. It has helped provide the ramps, wide doors and access that allow him to give speeches and meet with constituents.

While Abbott, the leading Republican contender for governor, benefits from the ADA mandates that guide businesses, builders and cities, he believes it is unconstitutional to force the state to comply. He has argued that his duty is to protect the state’s autonomy and its taxpayers by using all legal tools available to him — including the argument that the state is immune from disability lawsuits brought under the ADA.

“It’s the attorney general’s duty to zealously represent the interests of the state of Texas, and in these cases that meant raising all applicable legal arguments in litigation where Texas was sued in court,” said Abbott spokesman Jerry Strickland.

Abbott’s office has been aggressive on the issue. The state has frequently lost, even before conservative courts such as the Texas Supreme Court. And yet when there has been a trial, it has won several of the cases, with arguments that beat back the charges of discrimination.

Advocates for the disabled say Abbott’s office has worked to deny ADA protections by repeatedly and falsely claiming that impaired Texans don’t have the right to sue the state for discrimination. Abbott declined several requests from TheDallas Morning News to discuss the matter.

It touches on two key elements of Abbott’s campaign to succeed Gov. Rick Perry. He is touting his record of defending conservative legal principles. But Abbott also is highlighting his disability as evidence of his toughness. In campaign speeches and videos, he notes that he has “literally, a spine of steel” as a result of the accident.

And his likely Democratic opponent, Wendy Davis, is already raising questions about his performance as attorney general on issues such as school finance.

In most disability cases, Abbott’s office has claimed sovereign immunity for Texas. Such immunity, granted in the 11th Amendment to the U.S. Constitution, says a state can’t be sued without its consent.

It’s an argument that stops a case dead in its tracks and asks the court to toss the suit. If the state wins, the suit is over before a trial can be held to examine the merits of the case.

On ADA claims, federal appellate courts have established exceptions to a state’s claim of immunity. For instance, if a state agency accepts federal funding, it implicitly accepts federal rules and waives its immunity, the courts have said.

Critics say Abbott has shown himself to be obstinate in claiming sovereign immunity on ADA issues, even though federal courts have shot down the argument numerous times in the past nine years.

“The law is the law is the law,” said James Harrington, director of the Texas Civil Rights Project, a nonprofit group that has fought the state on several sovereign immunity claims in disability cases and won. “And the law is not ambiguous.”

Strickland said sovereign immunity as applied to disability claims is complex, and each case raises distinct legal and fact issues.

He cited a 2006 U.S. Supreme Court case, which exhorted courts to look at ADA cases and sovereign immunity “on a claim-by-claim basis.” That is what the state is doing, he said.

In the past, Abbott has suggested, though, that lawsuits are an appropriate way for the disabled to secure accommodations under the ADA.

When Gov. George W. Bush appointed Abbott to the Texas Supreme Court in 1995, the state quickly settled an ADA lawsuit over making the court building accessible to wheelchairs. Ramps and other renovations were made just before Abbott was sworn in.

At the time, Abbott said it was “ironic” that the Supreme Court, “the gatekeeper of the law,” had to be sued to comply.

“Unfortunately, there are occasions where you do have recalcitrant business owners or entities that do not understand the requirements of the ADA, or even worse, who do understand the requirements of the ADA and refuse to comply despite attempts at negotiations,” Abbott told the Austin American-Statesman at the time.

He added: “And in those circumstances, then a lawsuit is certainly warranted.”

Repeated use of immunity

In at least nine ADA cases identified by The News, the state has claimed sovereign immunity in federal court and lost.

Yet the argument is still raised, as recently as December.

Twin brothers Issai and Noe Garcia were involved in a Laredo bar fight and placed in a diversion program by a state district judge. The brothers are deaf, so the court relied on a deaf education teacher to interpret with sign language during several hearings.

But state law requires a certified interpreter, which the teacher was not. In addition, the judge ordered the brothers into an anger management program, which lacked interpreters.

A lawsuit seeks to require the Webb County district courts to provide qualified interpreters. District courts fall under state jurisdiction, so the attorney general’s office is handling the case. Abbott’s office has asked the federal judge hearing it to dismiss the lawsuit claiming sovereign immunity.

Harrington, the advocate for the disabled whose office is helping represent the brothers, pointed out that if their case were in municipal or county court, there would be no question. Cities and counties don’t have sovereign immunity protection and must follow the ADA.

“But if it gets to district court — the more serious, high-powered courts — they shouldn’t have interpreters. How does that make sense?” Harrington asked.

‘Long, hard road’

For former Texas Tech University Health Sciences professor Elaine King Miller, who was suffering a degenerative eye disease, the question was whether the university would provide her, among other things, reflective tape on the stairway and voice-recognition software for typing on her computer.

It took a five-year legal fight with the state. In 2005, the 5th U.S. Circuit Court of Appeals cleared the way for her to pursue a discrimination suit.

In the often-cited case, the court determined that the university waived its sovereign immunity protection from ADA lawsuits when it accepted federal funding.

“It was a long, hard road to get there,” said Miller’s attorney, Bradley Howard.

Miller’s requests weren’t unreasonable or brought in the name of activism, he said.

“She’s a businesswoman. She’s mainstream. Conservative in many respects. She didn’t make any requests that were out of bounds,” Howard said.

In the end, the state prevailed on the merits of the case. Miller and a co-plaintiff won, though, on a separate issue of gender discrimination when the jury determined Texas Tech paid them less and passed them over for tenure in favor of less qualified men.

Even in state courts, Abbott’s office has tried to block lawsuits from going to trial. In 2004, it argued before the Texas Supreme Court that a woman with one leg could not claim disability discrimination because she wore a prosthesis that remedied her mobility.

The all-Republican court rejected the argument, issuing a unanimous, written opinion just three weeks later. The court usually considers cases for months, even years.

The ruling opened the case to trial, which the state also won on the merits. The jury found that Evelyn Little was frequently passed over for a job as a food service worker in the state prison system on issues not related to her disability.

Deputy Solicitor General Andy Oldham said there are good reasons why the state tries to block lawsuits from going to court, even when it has a strong case. Good lawyers use all the tools at their disposal, he said.

“If a litigant had two valid reasons — sovereign immunity and the meritlessness of the suit — she would always assert both,” Oldham said. “Suggesting that the lawyer should waive the first argument and use only the second is akin to asking a boxer to fight with one hand tied behind his back.”

While those bringing the lawsuits might believe they are only asking for “a reasonable accommodation,” there is usually disagreement on what that entails, he said.

“It’s wrong to suggest that the state is unwilling to make any accommodation just because it refused to do everything that the plaintiff wanted,” Oldham said.

Dennis Borel, executive director of the Coalition of Texans with Disabilities, said that advocates’ frustration stems from Abbott’s office consistently seeking immunity for Texas agencies, regardless of the claim.

“When you invoke the sovereign immunity defense, you’re not responding to the merits of the case,” he said. “You’re simply saying the state is immune for its violations of the ADA and therefore there’s not even a point of having a day in court.”

Brian East, senior attorney for Texas Disability Rights, said the repeated efforts to raise sovereign immunity against the disabled cuts off the chance to fix problems.

“I wouldn’t say they were hostile,” East said of the attorney general’s legal team. “They are hostile to the notion that individual citizens might have redress against the state, in general. They are not targeting people with disabilities specifically, but doing what they can to limit the rights of individuals to use the courts in civil rights cases against the state.”

ADA claims against the state are largely limited to protecting civil rights, such as equal treatment under the law. Also, Texas has state laws that provide protections on building accessibility and employment.

State Sen. Juan “Chuy” Hinojosa, D-McAllen, offered legislation in 2005 that would have waived the state’s sovereign immunity in ADA claims.

“It’s a very fundamental right that we treat all our citizens with dignity and respect,” Hinojosa said.

He said there were a number of opponents, but objections from Abbott’s office “carried a lot of weight and influence.”

“Their position is one of state rights, that this is a federal statute, and the state ought to be immune from implementing the law but also from being sued for ignoring the law,” Hinojosa said.

Strickland, the Abbott spokesman, said the agency did not oppose the measure but “informed the Legislature about the legal effect of the bills in question.”

Hinojosa noted that Abbott has said it is his duty to defend the state against all lawsuits. But “now that he is running for governor, he will have the opportunity to support legislation” to better protect the disabled, he said.

Follow Christy Hoppe on Twitter at @christyhoppe.

AT A GLANCE: Some cases

During Greg Abbott’s tenure as attorney general, his office has fought lawsuits that disabled people have brought against state agencies. In numerous instances, the attorney general has made sovereign immunity claims — that states are shielded from these suits under the 11th Amendment. The state has lost on that argument repeatedly but has continued to push such claims. A sampling of cases:

McCarthy vs. Hawkins

Details: In September 2002, the state was sued on behalf of 25,000 disabled Texans stuck on years-long waiting lists to obtain community-based services. The suit contended the state was violating the Americans with Disabilities Act by failing to provide appropriate accommodations.

Abbott’s argument: The state is immune from lawsuits brought under the ADA.

Ruling: In September 2004, the 5th U.S. Circuit Court of Appeals said state officials are liable and do not have immunity from lawsuits brought under the ADA. Two years later, the state settled the suit with a pledge to greatly increase Medicaid-funded services in the community over the next six years.

Miller vs. Texas Tech University Health Sciences Center

Details: As part of a larger case, a legally blind Texas Tech professor accused the university in 2000 of failing to accommodate her by, among other issues, denying her voice-recognition software for her computer and declining to place reflective tape on the stairs leading to her office.

Abbott’s argument: The state is immune from such lawsuits.

Ruling: The issue of sovereign immunity from the disability law went to the 5th Circuit, which ruled against the state in August 2005. “If the involved state agency or department accepts federal financial assistance, it waives” sovereign immunity, the court said. At the subsequent trial, a jury found the university discriminated against the professor based on her gender but not her disability.

Abbott’s argument: A state judge rejected sovereign immunity arguments, and the state sought to have the case moved to federal courts, making a sovereign immunity claim again.

Ruling: The 5th Circuit called the state’s argument “novel” but pointed to a U.S. Supreme Court decision that found once a state asks for and is granted federal court jurisdiction, it has waived sovereign immunity. In 2009, the state settled the lawsuit, agreeing to pay $24 million, including refunds for the placard fees.

Espinoza vs. Texas Department of Public Safety

Details: A woman who used crutches or a motorized scooter after contracting rheumatoid arthritis as a child went to renew her driver’s license in 2000, after 17 years of driving without incident. Because of her mobility issues, DPS declared her a potentially dangerous driver and required that she would have to take the driving test again.

Abbott’s argument: Sovereign immunity should prevent a suit.

Ruling: The 5th Circuit denied immunity in August 2005. The case proceeded to trial, and the state won.

Durrenberger vs. Texas Department of Criminal Justice

Details: Jeremy Durrenberger, whose hearing is impaired, tried repeatedly to visit his inmate friend in Hughes prison unit. The visiting room had glass dividers, and Durrenberger was supposed to use a phone system to communicate with his friend. He asked for a voice amplifier to be installed on the phone used by visitors so he could hear. The department said it could not afford the devices, estimated to cost between $15 and $100 each, throughout the prison system.

Abbott’s argument: The case should be dismissed based on sovereign immunity.

Ruling: A federal judge granted Durrenberger summary judgment in December 2010, with further hearings ordered on lawyers’ fees and damages.

Little vs. Texas Department of Criminal Justice

Details: Evelyn Little, who had her left leg amputated at the knee, used a prosthetic and was able to complete long work shifts. She had worked as a food manager at nationally recognized restaurants. She applied for state jobs as a food manager on more than 14 occasions between 1995 and 1999 but was never hired. She sued for employment discrimination.

Abbott’s argument: Little was not disabled because the prosthesis solved her disability.

Ruling: The Texas Supreme Court found in October 2004 that she was disabled and ordered a trial on the merits. A jury found that issues other than Little’s disability led to her not being hired.

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